Judge: Michael P. Linfield, Case: 22STCV05772, Date: 2022-10-25 Tentative Ruling
Case Number: 22STCV05772 Hearing Date: October 25, 2022 Dept: 34
SUBJECT: Motion
for Reconsideration
Moving Party: Plaintiff
Caroline Lee
Resp. Party: Defendant United Escrow Co.
Plaintiff
Caroline Lee’s Motion for Reconsideration is DENIED.
BACKGROUND:
On May 24, 2022, the
Court granted Defendant United Escrow Co.’s Motion to Strike Complaint Pursuant
to CCP § 425.16.
On August 1, 2022, the
Court granted Defendant United Escrow Co.’s Motion for Attorney’s Fees and
Costs as the Prevailing Party Pursuant to CCP § 425.16.
On August 15, 2022,
Plaintiff filed her Motion for Reconsideration. Plaintiff concurrently filed:
(1) Points and Authorities; (2) Declaration; and (3) Exhibits.
On October 4, 2022,
Defendant United Escrow Co. filed its Opposition.
Plaintiff has not
filed a reply or other response to Defendant’s Opposition.
ANALYSIS:
I.
Legal Standard
Pursuant to Code of Civil Procedure Section 1008, subdivision (a):
“When an application for an order has been made to a judge, or to a
court, and refused in whole or in part, or granted, or granted conditionally,
or on terms, any party affected by the order may, within 10 days after service
upon the party of written notice of entry of the order and based upon new or
different facts, circumstances, or law, make application to the same judge or
court that made the order, to reconsider the matter and modify, amend, or
revoke the prior order. The party making the application shall state by
affidavit what application was made before, when and to what judge, what order
or decisions were made, and what new or different facts, circumstances, or law
are claimed to be shown.” (Code of Civ. Proc., § 1008, subd. (a).)
As stated by the court in Gilberd v. AC Transit (1995) 32 Cal.
App. 4th 1494, 1499, a court acts in excess of jurisdiction when it grants a
motion to reconsider that is not based upon “new or different facts,
circumstances or law.” There is a strict requirement of diligence, meaning the
moving party must present a satisfactory explanation for failing to provide the
evidence, different facts, or law earlier. (Garcia v. Hejmadi (1997) 58
Cal. App. 4th 674, 690.)
II.
Discussion
Plaintiff moves the Court to
reconsider its Order granting Defendant United Escrow Co. attorney fees.
(Motion, p. 3:5–7.) Plaintiff bases her motion on allegations that Defendant’s
Counsel, Chad Biggins, misrepresented facts and lied about phone records. (Id
at pp. 1:25–28, 2:6–9, 2:10–27.)
Defendant opposes the
Motion, arguing: (1) the “evidence” Plaintiff submits is something that could
have been produced before but was not; (2) that the “evidence” is highly
suspicious, utterly lacks foundation, and is inadmissible; and (3) that this
new “evidence” changes nothing as it has no effect on the anti-SLAPP motion and
thus has no effect on the motion for attorney’s fees. (Opposition, p. 3:8–17.)
As stated above, “[t]he party making the application shall state
by affidavit what application was made before, when and to what judge, what
order or decisions were made, and what new or different facts, circumstances,
or law are claimed to be shown.” (Code of Civ. Proc., § 1008, subd. (a).) The Motion for Reconsideration does not include
an affidavit from Plaintiff attesting to any new or different facts,
circumstances, or law that would support an order granting reconsideration of
the Order dated August 1, 2022. The
declaration of Karpeles in support of the Motion for Reconsideration simply
attempts to authenticate various exhibits. (Although not necessary for the Court’s
ruling, the Court notes that paragraph 5 of the Karpeles Declaration is
hearsay; counsel is not competent to authenticate someone else’s cell phone records.)
The Court finds that this motion is not predicated upon any new or
different facts, circumstances, or law, and that Plaintiff has not complied
with the procedural requirements of CCP §1008.
The Court DENIES Plaintiff’s Motion for Reconsideration.
III.
Conclusion
The
Court DENIES Plaintiff Caroline Lee’s Motion for Reconsideration.